DURBAR HOTEL PLC V. MR. ABELLA ITYOUGH & ORS
(2010)LCN/4178(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of February, 2010
CA/K/147/2006
RATIO
PROLIFERATION OF ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION CAN BE MORE THAN THE GROUNDS OF APPEAL IN THE NOTICE OF APPEAL FILED
it is now well settled that the issues for determination should in no circumstance be more than the grounds of appeal in the notice of appeal. Both the Supreme Court and this court have in a plethora of authorities admonished counsel that it is undesirable to formulate issues for determination in excess of the grounds of appeal filed as is herein done by the learned counsel for the Respondents. See Ogoyi V. Umagba & Anor (1995) 9 NWLR (pt 419) 283, Fabusola V. Fakiyesi (1998) 3 NWLR (pt 543) 678. PER JOHN INYANG OKORO, J.C.A
EFFECT OF AN ACTION THAT IS NOT PROPERLY CONSTITUTED ON THE JURISDICTION OF THE COURT
It is a well settled principle of law that where an action is not properly constituted it robs on the jurisdiction of the court to entertain same. PER JOHN INYANG OKORO, J.C.A
REPRESENTATIVE ACTION: POSITION OF THE LAW ON REPRESENTATIVE CAPACITY
It is the practice in our courts that where more persons than one have the same interest in a suit, one or more of such persons may, with the leave and approval of the court, be authorized by the other persons interested, to sue or defend the suit on behalf and/or for the benefit of all. See Atanda & Anor V. Akunyun & Ors (1988) 3 NSCC 10. The Apex court explained the rationale of this rule of practice in Atanda’s case per Oputa, JSC at p.18 as follows:- “Our Rules of court in the various jurisdictions specifically provided for this. And it is a salutary and commonsense provision for where the parties are very numerous, it will be extremely cumbersome and irritatingly frustrating if every body interested is made a named party. The court will find it difficult to come to justice by insisting that everyone interested should be named on the Writ as a party. For the sake of convenience, our courts therefore approve of representative actions. Thus, given a common interest or a common grievance, a representative action is in order if, the relief sought is in its nature beneficial to all whom the named plaintiffs propose to represent. Duke of Belford V. Ellis (HL) (PC) (1901) A.C. 1 and 8.” Thus, a representative action is not a matter of strict law which requires adherence and compliance. It is as stated above, a rule of convenience. Therefore, its application in cases has often been relaxed. That is to say, it is not to be treated as a rigid rule of law but as a flexible tool in the administration of justice. See Tobi, JCA (as he then was) In Busari V. Oseni (1992) 4 NWLR (pt 237) 557 at 582. PER JOHN INYANG OKORO, J.C.A
REPRESENTATIVE CAPACITY: THE ESSENTIAL REQUIREMENTS WHICH A PARTY WHO DESIRES TO SUE IN A REPRESENTATIVE CAPACITY MUST FULFIL
The courts have over time laid down the essential requirements which a party who desires to sue in a representative capacity must fulfil. The principles were laid down in Olatunju V. The Registrar Co-operative Society (Supra) as follows: (1). There must be numerous persons interested in the case or the side to be represented; All those interested must have the same interest in the suit, i.e their interest must be joint and several. (2). All of them must have the same grievance; (3). The proposed representative must be one of them; and (4). The relief or reliefs sought must be in its nature beneficial to all the persons being represented. See also Ofia V. Ejem (Supra) Busari V. Oseni (Supra), Atanda & Anor V. Akunyun & Ors (Supra). PER JOHN INYANG OKORO, J.C.A
Before Their Lordships
MOHAMMED L. GARBAJustice of The Court of Appeal of Nigeria
JOHN INYANG OKOROJustice of The Court of Appeal of Nigeria
THERESA N. ORJI – ABADUAJustice of The Court of Appeal of Nigeria
Between
DURBAR HOTEL PLCAppellant(s)
AND
1. MR. ABELLA ITYOUGH SUING FOR AND ON
2. MR. BONIFACE ONU BEHALF OF 300 STAFF
3. MALLAM SHEHU ABDULUHI OF DURBAR HOTEL PLC
4. MAURICE DACHELEM
5. MR. JOHN IKPITARespondent(s)
JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Kaduna State presided over by Hon. Justice Esther Inuwa which ruling was delivered on the 24th day of February, 2006 wherein the court dismissed the Appellant’s motion on notice dated the 24th day of November, 2005 which sought to strike out or dismiss the Respondents’ suit for want of capacity to sue and for the suit not being properly constituted. A brief facts of the case shall suffice. The Respondents who were plaintiffs in the court below, numbering about 300 are employees of the Appellant. Sometimes in April, 1997, the Appellant directed the Respondents to proceed on a six (6) months compulsory leave to enable the Appellant carry out some renovation works in the Appellant’s property. Since the Respondents were asked to go on six months compulsory leave by the Appellant till date, the Appellant has not paid the Respondents their salaries and allowances. As a result of this, the Respondents filed this suit against the Appellant for and on behalf of the 300 staff of the Appellant claiming the following reliefs:-
(a). “A declaration that the defendants’ action in keeping the plaintiffs away from duty at the defendants’ premises indefinitely as from May, 1997 till date without paying them any amount whatsoever and without due termination of their contracts of employment with the defendant is wrongful, illegal and a gross violation of the terms and conditions of their employment.
(b). A declaration that the said action of the Defendant had caused the plaintiffs serious untold mental, physical, psychological and social inconveniences, hardship and embarrassment.
(c). An order awarding the plaintiffs against the Defendant the sum of N500,000,000.00 as general and aggravated damages for the gross violation of the terms of employment and condition of services as well as the serious inconviences, hardship and embarrassment to the plaintiffs or IN THE ALTERNATIVE.
(d). An order directing the Defendant to terminate the plaintiffs appointment with the defendant in accordance with the terms and conditions of their appointment with defendant and for the defendant to pay the plaintiffs their salaries and other fringe benefits from May, 1997 till the order of the termination of their appointment totaling N220,000,000.00 (Two Hundred and Twenty Million naira only).”
After the Respondents as plaintiffs had closed their case and the matter adjourned for defence, the Appellant filed motion on notice dated 24/11/05 wherein it prayed for:-
(a) “An order striking out/and or dismissing this suit;
(b) And for such order or other orders as this court may deem fit to make in the present circumstance.”
The grounds for the application are that the Respondents as plaintiffs lack the capacity to institute the action in a representative capacity and that the suit was not properly constituted. After hearing argument from both parties, the learned trial Judge ruled that the Respondents’ action was properly constituted and that in the circumstances of the case, the Respondents can bring the suit in a representative capacity.
Dissatisfied with the said ruling the Appellant filed notice of appeal dated 2/3/06 on the same date. The notice of appeal contains only one ground of appeal. From the lone ground of appeal, the Appellant has formulate one issue for the determination of this appeal as follows:-
“Whether the Respondents’ action is properly constituted and whether they can maintain the action in a representative capacity.”
The learned counsel for the Respondents has however, distilled two issues from this one ground of appeal. The issues are:-
1. Whether the Respondents’ action is properly constituted and whether the Respondents can maintain this action in a representative capacity.
2. Assuming but not conceding that the Respondents lack the necessary requisite capacity to maintain action in a representative capacity, whether the defect is fundamental to render the entire suit incompetent.
Before I proceed to resolve the lone issue formulated by the Appellant in this appeal, I observe that the learned counsel for the Respondents has distilled two issues from just one ground of appeal filed by the Appellant. I need to emphasise that issues for determination formulated by the Respondent must also arise from the grounds of appeal filed by the Appellant. It may be formulated in the affirmative based on the issue already formulated by the Appellant. The Respondent should not formulate an issue, which is extraneous to the grounds contained in the Appellant’s notice of appeal except where he has filed his own notice of appeal properly called a cross-appeal. See Nzekwu V. Nzekwu (1989) 2 NWLR (pt 104) 373.
Again,
it is now well settled that the issues for determination should in no circumstance be more than the grounds of appeal in the notice of appeal. Both the Supreme Court and this court have in a plethora of authorities admonished counsel that it is undesirable to formulate issues for determination in excess of the grounds of appeal filed as is herein done by the learned counsel for the Respondents. See Ogoyi V. Umagba & Anor (1995) 9 NWLR (pt 419) 283, Fabusola V. Fakiyesi (1998) 3 NWLR (pt 543) 678.
In the instant appeal, only one ground of appeal was filed but the learned counsel for the Respondents has formulated two issues from this one ground. Let me remind counsel that while the courts may tolerate equal number of grounds and issues they cannot tolerate a situation where there are less grounds of appeal than issues formulated for the determination of the appeal. The reason is that while grounds of appeal complain on specific aspects in the judgment of the court, the issues deal with a number or agglomeration of grounds. See Agu V. Ikewibe (1991) 3 NWLR (pt 180) 385 & Tobi: The brief system in Nigerian Courts, 1st Edition at P. 72, paragraph 168. Let me not say more on this. I shall however, determine this appeal based on the lone issue of the Appellant which is the same as issue No. 1 in the Respondents’ brief of argument.
It was the submission of the learned counsel for the Appellant that in a representative action, all the parties represented must have a common right or interest, a breach of which entitle any of the aggrieved to represent the others. But that in the present case, the action of the Respondents being for breach of contract of employment, the interest of each of the Respondents is tied to his/her contract of employment with the Appellant. Learned counsel further submitted that since each of the Respondents signed a contract of employment with the Appellant, action in a representative capacity does not lie in the Respondents. Rather, that in the realm of master and servant relationship, even though one hundred or more persons are given employment the same day, under the same conditions of service, the contract of employment is personal or domestic to each of the persons. Therefore, in the event of breach by the employer, the employees do not have collective right to sue in or be represented in the suit. That where there is a breach, the aggrieved parties can bring a joint action and not a representative action. He cites and relies on the following cases:-
Bossa V. Julius Berger (2005) All FWLR (pt 290) 1503 or (2005) 15 NWLR (pt 948) 409, CCB Nigeria PLC Vs. Rose (1998) 4 NWLR (pt 544) 37, Olatunji V. Registrar, Co-operative Societies (1968) NMLR 393, UBN Vs Penny Mart (1992) 2 NWLR (pt 240) 228, Wnorgu V. N.L.N.G. Ltd (2005) All FWLR (pt 280) 1593, Abdulkadir & Ors V. Smith (1973) 8 NSCC 407.
Finally, he submitted that had the Respondents restricted their action to a claim for an order compelling the Appellant to terminate their employment, then, representative action would lie. He urged the court to resolve this issue in favour of the Appellant.
In his reply, the learned counsel for the Respondents submitted that, the court below was right in holding that the Respondents can maintain this action in a representative capacity. That in deciding whether or not the Respondents can maintain this action, it is pertinent to examine the nature of the claim and the reliefs sought by the Respondents which is the basis of the Appellant’s appeal. Furthermore, that the Respondents have satisfied the conditions laid down in the case of Busari V. Oseni (1992) 4 NWLR (pt 237) 557 and Atanda V. Olarewaju (1988) 4 NWLR (pt 89) 394. He also cites the cases of Olatunji V. the Registrar Co-operative Society (Supra) and Ofia V. Ejem (2006) 26 NSCQR (pt 2) 877.
Furthermore, it was submitted that the common interest and the common grievance the Respondents all have is that they were all asked to go on six months compulsory leave without being paid their salaries and entitlements by the Appellant till date and are asking the court to order the Appellant to pay them their salaries and if they are no longer needed, their appointment should be terminated. That the terms and conditions of the employment of the Respondents are not in issue in this suit. That this issue is to save time and costs and also to prevent multiplicity of proceedings.
Finally, that the court below had earlier granted the Respondents leave to sue in representative capacity and there is no appeal against that order. Accordingly the Appellant cannot be heard to complain now. He urged the court to resolve this issue in favour of the Respondents.
It is a well settled principle of law that where an action is not properly constituted it robs on the jurisdiction of the court to entertain same.
In this appeal there is no doubt that the Respondents sought and obtained the leave of the court below to sue in a representative capacity.
It is the practice in our courts that where more persons than one have the same interest in a suit, one or more of such persons may, with the leave and approval of the court, be authorized by the other persons interested, to sue or defend the suit on behalf and/or for the benefit of all. See Atanda & Anor V. Akunyun & Ors (1988) 3 NSCC 10. The Apex court explained the rationale of this rule of practice in Atanda’s case per Oputa, JSC at p.18 as follows:-
“Our Rules of court in the various jurisdictions specifically provided for this. And it is a salutary and commonsense provision for where the parties are very numerous, it will be extremely cumbersome and irritatingly frustrating if every body interested is made a named party.
The court will find it difficult to come to justice by insisting that everyone interested should be named on the Writ as a party. For the sake of convenience, our courts therefore approve of representative actions. Thus, given a common interest or a common grievance, a representative action is in order if, the relief sought is in its nature beneficial to all whom the named plaintiffs propose to represent.
Duke of Belford V. Ellis (HL) (PC) (1901) A.C. 1 and 8.” Thus, a representative action is not a matter of strict law which requires adherence and compliance. It is as stated above, a rule of convenience. Therefore, its application in cases has often been relaxed. That is to say, it is not to be treated as a rigid rule of law but as a flexible tool in the administration of justice. See Tobi, JCA (as he then was) In Busari V. Oseni (1992) 4 NWLR (pt 237) 557 at 582.
The courts have over time laid down the essential requirements which a party who desires to sue in a representative capacity must fulfil. The principles were laid down in Olatunju V. The Registrar Co-operative Society (Supra) as follows:
(1). There must be numerous persons interested in the case or the side to be represented; All those interested must have the same interest in the suit, i.e their interest must be joint and several.
(2). All of them must have the same grievance;
(3). The proposed representative must be one of them; and
(4). The relief or reliefs sought must be in its nature beneficial to all the persons being represented.
See also Ofia V. Ejem (Supra) Busari V. Oseni (Supra), Atanda & Anor V. Akunyun & Ors (Supra).
Now having regard to the Respondents’ claim before the court below, can it be said that the Respondents have satisfied the requirements as laid down by the court in the cases cited above and other cases not so mentioned? The claim of the Respondents are clear and unambiguous. The common interest and common grievance the Respondents all have is that they were all asked by the Appellant to go on six months compulsory leave without being paid their salaries and entitlements since May, 1997 till date. They are asking the court below to order the Appellant to pay their salaries and if their services are no longer required, it should formally relief them of their appointment. That is clear.
The Appellant’s counsel had argued in his brief that the Respondents cannot maintain this action in a representative capacity because the interest of the Respondents are different separate and distinct from the other. Also that the Respondents signed individual letters of appointment with the Appellant and therefore the contract is personal and that in a master and servant relationship an action in representative capacity cannot lie. The case of Bossa V. Julius Berger (Supra) was heavily relied upon.
I quite agree that in the realm of master and servant relationship, even though ten or more persons are given employment the same day under the same conditions of service, the contract of employment is personal and domestic to each of the persons. That is the decision of this court. I also agree that in the event of any breach, the persons do not have a collective right to sue or be represented in the suit. See Co-operative & Commerce Bank (Nig.) PLC V. Mrs Amadi Rose, U. & 4 Ors (1998) 4 NWLR (pt 544) 37.
It is interesting to note that in Bossa’s case (Supra), the claim was for damages for breach of contract and there were three counter affidavits against the application, sworn on behalf of those whom the Appellants claimed he represented. In CCB (Nig.) PLC’s case (Supra) the claim was for the sum of N1,649,290.40K in favour of the plaintiffs against the defendant “being balance of the gratuities, value of earned leave and transport entitlements due to the plaintiffs from the defendant upon the compulsory lay off of the plaintiffs by the defendant.”
In this appeal, the terms and conditions of their appointment or service is not in issue. What is in issue before the trial court is that the Respondents were asked by the Appellant to go on six months compulsory leave without being paid their entitlements till date. The two cases heavily relied upon by the Appellant are, in my opinion distinguishable here and I so do. The learned trial Judge in her ruling on page 170 of the record of appeal states categorically on the issue as follows:-
I agree that there is privity of contract with each plaintiff, but state that for each plaintiff, the Defendant has the duty to pay salaries. That is a factor that is common to all of them and that is what they are complaining of and that same has not been paid to any of them since 1997. I do agree with Mr. Ibanga that this suit is not claiming that Defendant has terminated their employment; infact by their alternative prayer it is the plaintiffs who are urging that the Defendant should formally terminate their employment with it.
I am in total agreement with the above findings of the court below. I also agree with the submission of the leaned counsel for the Respondents that since the Respondents had sought for and obtained leave of the lower court to sue in representative capacity and the Appellants not having appealed against the said order of court, they cannot be heard to complain while that order is subsisting. I am quite in support of the ruling and decision of the court below that the Respondents had satisfied the conditions laid down in Olatunji v. Registrar Co-operative Society (Supra) and Busari V. Oseni (Supra) in bringing this suit in a representative capacity. I so hold.
The sum total of all I have endeavoured say is that the lone issue submitted for the determination of this appeal does not avail the Appellant. Accordingly, this appeal lacks merit and is hereby dismissed by me. I award costs of N30,000.00 in favour of the Respondents.
MOHAMMED LAWAL GARBA , J.C.A: I have read the lead judgment written by my learned brother OKORO, JCA and the views expressed therein on the lone issue for determination are the same with mine.
The requirements for a representive action stated in the case of OLATUNJI .V. REG. CO-OPERATIVE SOCIETIES (1968) NMLR 393 cited in the lead judgment were very recently restated by the Apex Court in EJEZIE .V. ANUWU (2008) 12 NWLR (1101) 446 and have been fully met by the Respondents who in addition, obtained the leave of the High Court to bring their action in representative capacity.
In the circumstances, the Respondents had the requisite legal capacity to institute the action which was therefore properly constituted.
For all the reasons set out in the lead judgment which I adopt, this appeal is wanting in merit and I join in dismissing it in the terms of the lead judgment.
THERESA NGOLIKA ORJIABADUA, J.C.A: I had read in draft the lead judgment of my learned brother, J.I. OKORO J.C.A and I agree with him completely that this appeal lacks merit and should be dismissed. It is the law that where more persons than one have the same interest in the suit, one or more of such persons may, with the approval of the Court, be authorized by the other persons interested to sue or to defend in such suit for the benefit of or on behalf of all persons so interested.
In Anatogu V. Attorney General East Central State and Ors (1976) 11 SC 109, it was opined that the rule permitting representative action is a rule of convenience and as such ought not to be treated with any rigidity but as a flexible tool of convenience in the administration of Justice. So, if there is a common interest and a common grievance, a representative suit will be in order if in addition the relief sought is in it’s nature beneficial to all whom the Plaintiff proposes to represent.
As was clearly stated in the lead judgment, the order made by the trial Court granting the Respondents leave to sue in a representative capacity still subsists and has not been appealed against.
The law is settled that any point(s) of law or facts not appealed against is/are deemed to have been conceded by the party against whom it was decided and that the said point(s), remain(s) valid and binding on the parties.
Further it is interesting to know that it was the Appellant who was challenging the Respondents capacity to sue in a representative capacity. In Shell Petroleum Development Company Nigeria Ltd Vs Edamkue, (2009) 14 N.W.L.R Part 1160 page 1 at 27-28 paragraph E, the Supreme Court per Ogbuagu J.S.C., held that the Appellant had no locus standi to object to the said representation not being a member of those families or communities. It was further held that once the Plaintiff/Plaintiffs expressed on a writ or statement of claim that the action was brought in a representative capacity, it is prima facie, though not conclusive evidence of authority by his/their groups, family or community to sue in that capacity. It is settled that it is only a member of that group, family or community who can dispute, intervene or challenge the proper representation or the capacity in which the Plaintiff/Plaintiffs sue. His lordship further held that it will be futile for a defendant who is not one of those the Plaintiff/Plaintiffs purport to represent to challenge the Plaintiffs’ said authority for or because if the Plaintiffs win, the losing party cannot share in the victory, and if the Plaintiffs’ case be dismissed, such dismissal can never affect the Defendant adversely.
It is crystal clear in this appeal that the Appellant who was the Defendant at the trial court was not a member of the Respondents’ group, the Appellant was their employers and could not have shared in the Respondents’ victory. This is because if there is a common interest and a common grievance, a representative suit would be in order if in addition the relief sought is in it’s nature beneficial to all whom the Plaintiff proposes to represent. As was expressed in S.D.P.C.N Vs Edamkue, (supra), once the Appellant in the instant appeal was not one of those the Respondents’ sued on their behalf or purport to represent, and was not a member of the Respondents’ group, it cannot disputes or challenge the capacity in which the Respondent’s sued.
It is, therefore, based on this and the reasons given in the lead judgment that I, also, dismiss this appeal with N30,000.00 costs in favour of the Respondents.
Appearances
Abdullahi Haruna Esq. with A. I. Omachi and T.R. Jiabu EsqFor Appellant
AND
F.U. Ibanga Esq.For Respondent
